Class Action Defense – Class Action Defense

February 12, 2026February 12, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 135: Key Developments In TCPA Class Actions

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman and Jennifer Riley and associates Ryan Garippo and Elizabeth Underwood with their discussion of the key trends and developments analyzed in the 2026 edition of the TCPA Class Action Review.

Check out today’s episode and subscribe to our show from your preferred podcast platform: Spotify, Amazon Music, Apple Podcasts, Podcast Index, Tune In, Listen Notes, iHeartRadio, Deezer, and YouTube.

Episode Transcript

Jerry Maatman: Welcome, loyal blog listeners and readers. Thank you for being here for our weekly podcast of the Class Action Weekly Wire. I’m Jerry Maatman, a partner at Duane Morris, and joining me today on the podcast are my colleagues Jennifer Riley, Elizabeth Underwood, and Ryan Garippo. Thanks all for being here.

Jennifer Riley: Thanks, Jerry, it’s always good to be here.

Elizabeth Underwood: Thank you, Jerry. Happy to be part of the podcast.

Ryan Garippo: Thanks for having me, Jerry.

Jerry: Today on the podcast, we’re discussing a recent publication of the Duane Morris Class Action Defense Group called the TCPA Class Action Review – the Telephone Consumer Protection Act. Listeners can find this e-book publication on our blog, the Duane Morris Class Action Defense Blog. Jen, can you tell our listeners a little bit about this desk reference?

Jennifer: Absolutely, Jerry. So, the TCPA has long been a focus of litigation, particularly for class actions. The class action team at Duane Morris released its third edition of the TCPA Class Action Review earlier this week. The publication analyzes the key TCPA-related filings and rulings and developments in 2025, as well as the significant legal decisions and trends impacting this type of class action litigation for 2026. We hope that companies will benefit from this resource in their efforts to comply with these evolving and ever-changing laws and standards.

Jerry: In 2025, I think it’s fair to say that courts issued a mixed bag of results and rulings on issues arising under the TCPA, sometimes for the defense, sometimes for the plaintiffs. Ryan, overall, how often were plaintiffs’ classes certified in TCPA lawsuits?

Ryan: Well, Jerry, I would say there were wins on both sides, but plaintiffs came way ahead in terms of having classes certified. Courts granted motions for class certification in 53% of cases and denied them in 47% of cases in 2025. However, that’s higher than in 2024, when courts granted certification in 37% of the time, however, much lower than in 2023, when the plaintiffs’ bar was much more successful in obtaining class certification, with courts granting such motions upwards of 70% of the time.

Jerry: Well, for those keeping a scorecard, those are certainly up and down results that swing from year to year. Elizabeth, in terms of your thought leadership in following this area, what, to you, were the most notable rulings in this space in 2025?

Elizabeth: Yes, Jerry, in Fischbein v. IQVIA Inc. A federal court in Pennsylvania denied class certification in a TCPA fax case – and the decision turned on old-school technology. The proposed class included more than 25,000 healthcare providers who allegedly received unsolicited fax advertisements. But the court closely examined the TCPA’s language and concluded that the statute only protects faxes received on traditional stand-alone fax machines and not modern online fax services. The key statutory phrase was “telephone facsimile machine,” which the law defines as equipment that transmits or receives documents over a “regular telephone line.” The court interpreted that to mean an analog telephone line, not internet-based fax platforms. The court thus found that the plaintiffs could not show through common evidence which recipients received the faxes on traditional machines versus online fax services. Without a reliable way to distinguish between the two, the court found the class was not ascertainable. And because determining the method of receipt would require individualized inquiries, common issues did not predominate.

For TCPA defendants, Fischbein underscores the importance of scrutinizing class definitions. If liability depends on the method of receipt – traditional fax machine versus online service – and that distinction can’t be determined through common proof, that’s a powerful argument against certification.

Jerry: Well, thanks so much, Elizabeth. I think another important TCPA ruling this past year emanated from the Third Circuit in Conner v. Fox Rehabilitation Services. In that case, the Third Circuit affirmed a district court’s denial of class certification in a TCPA case involving facsimiles. The key issue there was consent. Ryan, how do you read that Third Circuit decision?

Ryan: Sure, Jerry. I think it remains true to this day that consent is still the most powerful defense in response to a TCPA case. So, during the early months of the COVID-19 pandemic, Fox Rehabilitation sent more than 20,000 faxes to healthcare providers, promoting its therapy services, while also reassuring providers that it remained operational. The plaintiff alleged that the faxes were unsolicited advertisements in violation of the TCPA and sought to certify a class. The district court actually denied certification there, finding that individualized questions regarding whether each recipient had consented would overwhelm the common issues. Although the court later ruled for the plaintiff in his favor at a bench trial on the individual claim, but that said it did not allow the case to proceed as a class. On appeal, the Third Circuit clarified one important point: although the class was ascertainable, because it could be identified using the defendant’s own facts transmission logs, that wasn’t enough. The Third Circuit agreed that consent would require individualized inquiries regarding how and when each recipient provided their fax number, and when the faxes fell within the scope of that consent. Because these individualized issues predominated over the common ones, the Third Circuit affirmed the denial of class certification, reinforcing what has been traditionally known that consent is the most powerful barrier to a TCPA case.

Jerry: Thanks, Ryan. I agree that consent issue tends to be a very good weapon in the arsenal of defendants to try and block or fracture classes in this space. I suspect we’re going to see that issue playing out in other circuits in 2026. Jen, the review also, analyzes the top settlements in this space, and it seemed like plaintiffs did very well this year in monetizing their class action settlements and TCPA cases.

Jennifer: Agreed, Jerry. Plaintiffs did very well in securing high-dollar settlements in 2025 in the TCPA space. The top 10 TCPA class action settlements totaled $69.1 million. That’s down just slightly from what we saw in 2024, where the top 10 settlements totaled $84.73 million.

Jerry: As our loyal readers know, we track the settlements on a 24/7/365 basis, so we’ll be analyzing top TCPA class action settlements throughout the year. Well, thank you very much for being here on today’s podcast, and thank you for our loyal listeners and readers for tuning in.

Jennifer: Thanks, Jerry, and thanks to all of our listeners. We hope you enjoy the TCPA Review. Please stop by the blog and download your free copy of the e-book.

Ryan: Thanks so much for the opportunity, Jerry.

Elizabeth: Thanks for having me, Jerry, and thank you to all the listeners.

February 9, 2026February 9, 2026 by Class Action Defense

Video Recap From Our Duane Morris Class Action Review – 2026 Book Launch Event!

Thank you to all our clients who attended the in-person book launch of the Duane Morris Class Action Review in Chicago at the Northwestern Pritzker School of Law last week, as well as our nationwide and international audience who participated via Zoom.

In case you missed it, watch a video of the live presentation below, featuring Duane Morris partners and editors of the Review, Jerry Maatman and Jennifer Riley and guest speaker Hon. Wayne R. Andersen (Ret.).

February 5, 2026February 12, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 134: Key Developments In Privacy And Data Breach Class Actions

Duane Morris Takeaway: This week’s episode features Duane Morris partner Jerry Maatman, special counsel Justin Donoho and Tyler Zmick, and senior associate Hayley Ryan with their discussion of the key trends and developments analyzed in the 2026 editions of the Privacy Class Action Review and the Data Breach Class Action Review.

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners and readers. Thank you for joining us again for our next episode of our podcast, The Class Action Weekly Wire. I’m Jerry Maatman of Duane Morris, and joining me today are some of my favorite colleagues, Justin, Hayley, and Tyler. Thanks for joining us.

Justin Donoho: Thank you, Jerry, great to be here.

Tyler Zmick: Thanks, Jerry, it’s a pleasure to be here today.

Hayley Ryan: Thanks for inviting me, Jerry.

Jerry: Today’s a great day, and an exciting one, because we’re announcing the publication and launch of two new Duane Morris publications: the 2026 Data Breach Class Action Review, and the 2026 Privacy Class Action Review. We’ve got a lot to unpack, because 2025 was a huge area and a lot happened in the class action space, and especially both with respect to data breach and privacy class action litigation. Let’s start with data breach – what happened in 2025?

Justin: Yes, Jerry, huge is the right word. If anyone thought data breach class actions were slowing down, 2025 pretty much put that theory to rest.

Hayley: Completely, Justin. Data breach class actions continue to be one of the fastest growing areas in complex litigation. At this point, it’s almost predictable. A breach gets reported, the headlines follow, and then the class actions aren’t that far behind.

Tyler: And, interestingly, it’s not just the massive breaches anymore – even smaller data incidents are triggering lawsuits, which really tells you a lot about how aggressive and sophisticated this litigation space has become.

Jerry: Let’s start with the numbers, because, in my view, they’re eye-popping. In the first half of 2025 alone, there were 944 data breach class actions filed – nearly 158 per month.

Justin: That’s right, Jerry, and by the end of the year, that number ballooned to over 1,822 filings. That’s a staggering volume by any measure.

Hayley: Absolutely, and what’s especially striking is the breadth of industries impacted. Finance, healthcare, tech, retail, education, professional service – no sector was immune in 2025.

Tyler: And many of these data breaches involved hundreds of millions of employee and consumer records, and that scale really drives everything. Litigation risk, settlement exposure, and also a company’s reputational harm.

Jerry: When you peel back the onion skin, what, in essence, is driving, this mushroom cloud of class actions in the data breach space is a big part of this, the kind of ‘evolving threat’ landscape.

Justin: Yes, absolutely, Jerry. Cybercriminals today are more sophisticated than ever before. Ransomware attacks, in particular, surged in 2025, with criminals demanding payment not to publish stolen data.

Hayley: And even paying the ransom doesn’t solve the problem. There’s no guarantee the data gets deleted, and many believe those payments just encourage more attacks.

Tyler: Then when you layer that on top of remote work, cloud storage, and increasingly complex IT environments, you end up with a recipe for more large-scale breaches, and as a result, more lawsuits.

Jerry: I think the statistics that we gathered and analyzed for 2025 also tell a story of increasing settlement values in the class action space. What do you see in terms of settlement numbers?

Justin: Yeah, those settlements are going higher. That’s being pushed by larger classes, more sensitive data, and courts are increasingly sympathetic to plaintiffs as well.

Hayley: And in addition, legal fees are also climbing, as these cases become more complex and specialized.

Tyler: Which is why proactive cybersecurity and incident response planning are just so critical in today’s day and age. Companies with tested response playbooks tend to fare much better, both operationally and in litigation. The Data Breach Class Action Review is therefore a crucial resource for corporate counsel and companies to have in their toolbox to understand this area of class action litigation.

Jerry: Well, that’s absolutely true. Let’s pivot now to the Privacy Class Action Review, because this is an area that’s heating up and accelerating just as fast, if not faster, with the law struggling to keep up with technological advancements.

Justin: Yes, data privacy, another one of my favorite topics. Companies are adopting technologies that allegedly collect web browsing, biometric, genetic, and other personal data, and plaintiffs are challenging nearly all of it, a lot nationwide – everywhere.

Hayley: Yes, adtech litigation exploded again in 2025, with aggressive theories under statutes like the VPPA, or the Video Privacy Protection Act, the ECPA, or the Electronic Communications Privacy Act, and CIPA, which is the California Invasion of Privacy Act, with widely inconsistent rulings on standing and consent.

Tyler: I would absolutely echo the inconsistent ruling point and the complexity that raises for companies. I would also note that we saw a divergence at the appellate level in 2025, specifically we had the Ninth Circuit narrowing the VPPA exposure when it comes to movie theaters, while the Seventh Circuit expanded consumer status when it comes to free online services.

Jerry: It also seemed from the case law and the rulings that Illinois remains ground zero for businesses, especially with respect to litigation over biometrics and genetic privacy with the BIPA statute continuing to generate massive filings, and the GIPA now just following closely behind. When you put all this in the mix, what are your prognostications for 2026 in terms of what this means for companies on the privacy front?

Justin: Jerry, based on the trends we’re seeing, I think we can expect continued growth in both data breach class actions and privacy class actions. We’re seeing lots of divergent rulings in a lot of these different areas. We’ll continue to see some forum shopping as a result as well, but generally continued growth.

Tyler: And settlement values will likely keep rising as well, especially where courts grant class certification. We will be on the lookout to see how plaintiffs in 2026 fare in obtaining class certification, given the low rate from 2025.

Jerry: Well, that underscores why we put these two new publications together for clients in terms of corporate toolkits for getting their arms around data breach and privacy risks in the class action space. It’s certainly turning into an increasingly high-stakes terrain. So, for anyone who wants to dig a little deeper, the reviews are available — at the right price: for free – on our blog and website. For the remainder of the year, we’ll certainly be continuing to cover and dig deep into data breach and privacy class action litigation developments, both on our blog and in the Class Action Weekly Wire. So, stay tuned! And thanks so much, Justin, Hayley, and Tyler, for joining us on this episode of the Class Action Weekly Wire.

Justin: Thank you, Jerry, and thank you, listeners.

Tyler: Glad to be a part of the podcast, and thank you all, listeners. Be sure to download your copy of the review.

Hayley: Thanks, Jerry. Thanks, everyone.

February 3, 2026February 3, 2026 by Class Action Defense

Ninth Circuit Affirms Denial Of Motion To Compel Arbitration Imposed After Class Certification

By Gerald L. Maatman, Jr., Eden Anderson, Rebecca Bjork, Olga Romadin

Duane Morris Takeaways: On January 28, 2026, in Avery, et al. v. TEKsystems, Inc., 2026 U.S. App. LEXIS 2091, Case No. 24-5810 (9th Cir. Jan 27, 2026), the Ninth Circuit issued an order affirming a district court’s denial of an employer’s motion to compel arbitration. TEK, an IT staffing company, appealed a decision by the district court that declined to enforce arbitration under an agreement it had rolled out after a class certification ruling by a group of recruiters alleging unpaid overtime. The Ninth Circuit found that TEK had issued misleading communications with the arbitration agreement, and had inverted the class opt-out proceedings by requiring putative class members to opt out of the agreement to remain in the litigation. The decision highlights the impact that the choice of language employers utilize in communicating about arbitration agreements has on future litigation and underscores the authority of district courts in procedural considerations when an entire arbitration agreement is challenged.

Case Background

Four plaintiffs brought a putative class action in 2022, alleging that the defendant, a staffing agency specializing in placing IT professionals on temporary assignments, had violated California wage and hour laws by misclassifying recruiters as exempt from overtime and failing to provide meal and rest breaks. Id. at 6. Following nearly two years of litigation and a ruling by the District Court for the Northern District of California granting class certification, TEK implemented a new mandatory arbitration agreement that was automatically applicable to putative members of the class action via a series of emails sent around the holiday season. Id. at 6-8. The emails contained language referring to “exorbitant fees” of class action litigation and disparaged them as “wasteful” and “inefficient.” Id. at 3. The new arbitration agreement precluded class members from participating in the class automatically and required individuals wishing to remain in the class to either resign their positions or to affirmatively opt out of the arbitration agreement. Id. at 12. TEK then moved to compel arbitration.

The District Court denied the motion. It found that the new arbitration agreement was implemented in a manner that was misleading and that the “unilateral” communication of the new arbitration agreement “threatened the fairness of litigation“ and subverted Rule 23’s opt-out procedure by turning it into an opt-in proceeding. Id. at 5.

On appeal, TEK argued that the district court had erred in denying its motion to compel arbitration because it had no authority to invalidate a binding arbitration agreement under Federal Rule of Civil Procedure 23(d). TEK’s argument was rooted in its reading of Rule 23(d) as limiting a district court’s authority to impose conditions on defendants, and also argued that under the Federal Arbitration Act (FAA) a procedural rule could not be used to invalidate an arbitration agreement.

The Ninth Circuit’s Decision

A unanimous panel of the Ninth Circuit affirmed the district court’s decision declining to enforce the motion to compel arbitration.

The Court of Appeals found that under Rule 23(d), the district court had the authority to decline to compel arbitration to ensure fairness, and that the district court had applied the rule correctly. Examining the U.S. Supreme Court’s decision in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), the Ninth Circuit found that the district court’s broad authority under Rule 23(d) was applicable to collective actions, that it had a “duty” to exercise its authority to regulate the opt-in process, and thus the district court could refuse to enforce the arbitration agreement in dispute because it had found that TEK had “subverted” the opt-out process by requiring putative members to opt in instead. Id. at 20. The Ninth Circuit determined that Rule 83(b), which permitted a judge to “regulate practice” in the absence of controlling law, and wrote that when read in tandem with Rule 23(d), a district court had the authority to make appropriate decisions with regard to the parties, including in disputes over arbitration. Id. at 24-25.

The Ninth Circuit reviewed the emails that TEK had sent to implement the new arbitration agreement and found that the “disparaging” language used by the company to describe class action litigation was misleading, inaccurate, and confusing, and as a result had had a “harmful” effect on class membership, particularly since it was sent at the end of December 2023 and went into effect in January 2024. Id. at 27-29.

Finally, the Ninth Circuit opined that the arbitration agreement’s delegation provision, which delegated issues of arbitrability to an arbitrator, did not bar a district court from ruling on the enforceability of the arbitration agreement because plaintiffs had challenged the validity of the entire arbitration agreement, including the delegation clause, and under the Supreme Court’s ruling in Coinbase, Inc. v. Suski, 602 U.S. 143 (2024), the whole contract could be considered by the district court as part of the dispute. Id. at 31.

Implications For Class Action Defendants

When implementing a new arbitration agreement, employers should be mindful of the language and timing of their communications on such agreements so as not to appear to be attempting to influence recipients and running afoul of additional scrutiny in litigation.

January 30, 2026January 30, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 133: Key Developments In EEOC And Government Enforcement Litigation

Duane Morris Takeaway: This week’s episode features Duane Morris partners Jerry Maatman, Jennifer Riley, and Daniel Spencer with their discussion of the key trends and developments analyzed in the new edition of the EEOC And Government Enforcement Litigation Review – 2026.

Episode Transcript

Jerry Maatman: Thank you for being here, loyal blog readers and listeners, for the next episode of our regular podcast series, The Class Action Weekly Wire. My name is Jerry Maatman, and I’m a partner at Duane Morris, and joining me today are my colleagues and fellow partners, Jen Riley and Daniel Spencer. Welcome.

Jennifer: Great to be here, Jerry. Thanks for having me.

Daniel: Yeah, thanks, Jerry.

Jerry: Today, we’re here to announce our publication of the 2026 edition of Duane Morris’ EEOC And Government Enforcement Litigation Review. The review is available on our blogsite as an e-book and is a must-read for employers.

Jennifer: Absolutely, Jerry. Government enforcement litigation continues to look more and more like class action litigation in terms of both its exposure and its complexity. When you’re dealing with lawsuits brought by agencies like the EEOC or the Department of Labor, you’re often looking at significant risk, a large number of claimants, and serious reputational concerns for the companies involved.

Daniel: And one of the key points that we emphasize in the Review is that while these cases resemble class actions, they don’t actually operate the same way procedurally. In private class actions, plaintiffs have to jump through a bunch of hoops, like Rule 23, to get through class certification. That’s not the case with government enforcement and litigation.

Jerry: Exactly. A great example is what are known as EEOC systemic pattern or practice lawsuits, where there’s no class certification requirement, and the practical impact of the case, however, is just like a class action in terms of the amount of money necessary to defend it, the amount of management time that has to be allocated to the defense of the case, and the need to defend against widespread company-wide allegations of alleged discriminatory behavior. It’s certainly a high-stakes sort of lawsuit.

Jennifer: And that’s why employers cannot afford to underestimate these cases. Even without Rule 23, EEOC systemic lawsuits raise many of the same strategic and litigation challenges as private class actions raise. And those agencies are aggressive – the EEOC and the DOL, they continue to be two of the most active federal enforcement bodies.

Daniel: Yeah, Jen, and the numbers from 2025 really drive that point home. In fact, the top 10 EEOC enforcement action settlements and verdicts totaled $41.43 million, which is a notable increase from $25.95 million in 2024. The trend tells us that enforcement activity is not slowing down.

Jerry: I think it’s pertinent to note that the Department of Labor numbers are even more eye-popping from the perspective of corporate decision makers. In 2025, the top 10 settlements in the DOL space totaled $3.29 billion. That was up, quite a bit from 2024, when it was $335 million. So, you can see how dramatic the increase has been with the Department of Labor on its radar screen, looking for employers engaged in what it calls as alleged wage theft against workers.

Jennifer: Those DOL cases covered a range of issues, also Fair Labor Standards Act claims, as well as litigation involving consent decrees and injunctions. The rulings we analyzed in the review show how broad and potentially impactful the DOL enforcement actions can be.

Daniel: And that’s why this Review is so important for companies across the country. It looks at the legal issues that are being litigated, the enforcement strategies these agencies are using, and identifies and understands those critical trends for companies trying to stay ahead of the risk.

Jerry: Well, that’s well said, Jen and Daniel. And for anyone who wants to dig deeper, the full Review is available in e-book format on the Duane Morris Class Action Defense Blog. And we’ll be continuing to cover legal developments and rulings in the EEOC and the DOL space over the remainder of 2026, so stay tuned to the Class Action Weekly Wire.

Jennifer: Thanks for having me on the podcast, Jerry, and thanks to our listeners for being here. As always, subscribe to stay updated on the latest trends in class action law.

Daniel: Glad to be a part of the podcast, and thanks very much to all the listeners. Be sure to download your copy of the Review today.

January 27, 2026January 27, 2026 by Class Action Defense

VIDEO – DMCAR Trend #10: California Continued Its Dominance As “Ground Zero” For Expansion Of Representative Litigation

By Gerald L. Maatman, Jr. and Jennifer A. Riley

Duane Morris Takeaway: The final trend in our DMCAR series outlines how the California Private Attorneys General Act (PAGA) inspired more representative lawsuits than any other statute in America over the past three years. According to the California Department of Industrial Relations, the number of PAGA notices filed in 2025 approached 9,900, which surpasses the 9,464 PAGA notices in 2024.

DMCAR co-editor Jennifer Riley outlines this trend in the following video:

The so-called PAGA reform legislation passed in 2024 by California lawmakers seemingly did little to nothing to curb interest in these cases.

The PAGA created a scheme to “deputize” private citizens to sue their employers for penalties associated with violations of the California Labor Code on behalf of other “aggrieved employees,” as well as the State. A PAGA plaintiff may pursue claims on a representative basis, i.e., on behalf of other allegedly aggrieved employees, but need not satisfy the class action requirements of Rule 23.

Thus, the PAGA provides the plaintiffs’ class action bar a mechanism to harness the risk and leverage of a representative proceeding without the threat of removal to federal court under the CAFA and without the burden of meeting the requirements for class certification.

The PAGA’s popularity in recent years, however, also flows from its status as one of the most viable workarounds to workplace arbitration agreements. Thus, it presents one of the most pervasive litigation risks to companies doing business in California.

The Growth Of PAGA Notices Continues

According to data maintained by the California Department of Industrial Relations, the number of PAGA notices filed with the LWDA has increased exponentially over the past two decades.

The number grew from 11 notices in 2006, to 1,606 in 2013, and then underwent three sizable jumps – to 4,530 in 2014, to 5,732 in 2018, and to 7,464 in 2023, each coinciding with a significant shift in the legal landscape regarding arbitration. In 2024, notices exceeded 9,464 for the first time and, in 2025, the number of PAGA notices reached a new all-time high of approximately 9,981.

Employers saw the largest single year increase in 2014, when the number of notices increased from 1,605 in 2013 to 4,532 notices in 2014, an increase of 182%.

The most significant drop in the past two decades occurred in 2022, when notices fell from 6,502 in 2021 to 5,817 in 2022, before their resurgence in 2023 and continued growth in 2024 and 2025. The following chart illustrates this trend.

These numbers closely tie to the shifting impact of workplace arbitration programs, in that each of the major shifts coincides with the timing of a significant expansion or pull back in the law governing the enforcement of arbitration agreements.

PAGA reform seemingly has had little to no impact on the growth on PAGA filings. On June 18, 2024, Governor Newsom announced that labor and business groups had inked a deal to alter the PAGA in return for removing the referendum to repeal the PAGA from the November 2024 ballot. The California Legislature quickly moved to approve two bills (AB 2288 and Senate Bill 92). The alterations included reforms to the penalty structure, new defenses for employers, changes to the PAGA’s standing requirements, and a new “cure” process for both small and large employers, among other changes. These reforms affect all PAGA notices filed on or after June 19, 2024, with some exceptions. As noted above, however, PAGA reform did little to quell PAGA filings.

Could PAGA Activity Skyrocket?

As noted above, the PAGA emerged as one of the most popular tools of the plaintiffs’ class action bar in recent years due to its potential immunity from workplace arbitration agreements. The California Supreme Court is poised to consider the viability of so-called “headless” PAGA actions in 2026 – i.e., actions that lack or disclaim any individual PAGA claim (often because the plaintiff signed an arbitration agreement covering such claim) and seek to pursue only the representative PAGA component on behalf of other allegedly aggrieved employees.

The growing adoption of arbitration programs led the plaintiffs’ class action bar to identify various workarounds, and the PAGA emerged as one of the most viable in 2016 when the California Supreme Court issued its decision in Iskanian v. CLS Transportation Los Angeles, 59 Cal.4th 348 (Cal. 2014). In that case, the California Supreme Court held that representative action waivers in arbitration agreements are “contrary to public policy and unenforceable as a matter of state law.” Id. at 384. In so holding, Iskanian essentially immunized PAGA claims from arbitration and permitted plaintiffs to pursue representative actions under PAGA unhindered by arbitration agreements or commitments to arbitrate on an individual basis. The decision undoubtedly fueled the filing of PAGA notices in 2014, which catapulted from 1,606 in 2013 to 4,530 in 2014.

The PAGA suffered its first setback as an arbitration work-around in 2022 with the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana, 142 S.Ct. 1906 (2022). In Viking River, the U.S. Supreme Court held that, to the extent Iskanian precludes division of PAGA actions into individual and non-individual claims, and thereby “prohibit[s] parties from contracting around this joinder device,” the FAA preempts such rule. Id. As a result, the U.S. Supreme Court held that the lower court should have compelled arbitration of the plaintiff’s individual PAGA claim and should have dismissed the PAGA representative claim. Id.

The set-back was short lived as, in 2023, the California Supreme Court minimized the impact of the Viking River decision. In Adolph v. Uber Technologies, Inc., 14 Cal. 5th 1104 (Cal. 2023), the California Supreme Court took up the issue of whether, under California law, a PAGA plaintiff who’s individual PAGA claim is compelled to arbitration retains standing to bring a representative PAGA claim. The California Supreme Court answered the question in the affirmative. It held that, once a PAGA plaintiff is compelled to arbitrate his or her individual PAGA claim, so long as he or she is found to be an “aggrieved employee,” the plaintiff retains standing to maintain a non-individual PAGA claim in court. Id. at 1105.

By deciding that an individual who signs an arbitration agreement can return to court after arbitration to pursue a representative proceeding under the PAGA, the California Supreme Court relegated arbitration agreements to a mere hurdle rather than a bar to PAGA representative actions. Still, the plaintiffs’ bar has continued its attempt to eliminate the arbitration defense altogether to streamline their ability to proceed with representative actions in court. One emerging tool is the so-called “headless” PAGA action.

While such a tool seemingly runs counter to the ruling in Adolph and other cases, which have held that a PAGA claim necessarily consists of both and individual and representative portions, the California Court of Appeal gave it life in April 2024 with its decision in Balderas v. Fresh Start Harvesting, 101 Cal. App. 5th 533 (2024). In that opinion, the California Court of Appeal denied a motion to compel arbitration, holding that a plaintiff could maintain a representative PAGA action, even without an individual PAGA claim, so long as the plaintiff alleges that he or she suffered a Labor Code violation.

Appellate courts have taken different views as to this strategy over the past year. On July 7, 2025, for instance, in CRST Expedited, Inc. v. Superior Court Of Fresno County, 112 Cal. App. 5th 872 (Cal. App. 2025), the Court of Appeal for the Fifth District concluded that a worker’s dismissal of his individual PAGA claim did not bar him from pursuing a representative PAGA claim. The trial court granted the worker’s unopposed motion to dismiss his individual PAGA claim, and the defendant then sought dismissal of the non-individual PAGA claim on the ground that the plaintiff lacked standing to proceed. The trial court denied the motion. On appeal, the Court of Appeal concluded that the PAGA statute is ambiguous on this point and, faced with an ambiguous statute, opined that the primary objective of the PAGA statute is to maximize enforcement of labor laws and deter employer violations. As such, it held that requiring arbitration of individual claims before pursuing non-individual claims would undermine those enforcement efforts and that, to achieve effective enforcement, the PAGA statute should be interpreted to allow “PAGA plaintiffs and their counsel the flexibility to choose among bringing a PAGA action that seeks to recover of civil penalties on (1) the LWDA’s individual PAGA claims, (2) the LWDA’s non-individual PAGA claims, or (3) both.” Id. at 917.

In Williams, et al. v. Alacrity Solutions Group, LLC, 2025 Cal. LEXIS 4161 (Cal. App. July 9, 2025), the Court of Appeal for the Second District reached the opposite conclusion. The plaintiff, a former insurance adjuster, filed an action alleging that the defendant failed to pay overtime compensation. Although the plaintiff separated from his employment in January 2022, the plaintiff waited until March 2023 to file a PAGA notice with the LWDA. The plaintiff thereafter filed suit solely on behalf of other current and former employees and did not seek penalties on his own behalf. The trial court dismissed the plaintiff’s action holding that, because the plaintiff filed his PAGA notice more than a year after his employment ended, his individual claim was time-barred and, without a timely individual claim, he could not maintain a PAGA representative claim. The Court of Appeal affirmed the trial court’s ruling. It explained that a PAGA plaintiff must have a timely claim for violations he or she personally suffered. The plaintiff filed a petition for review with the California Supreme Court, and the California Supreme Court granted and deferred the appeal pending consideration and disposition of related issues in Leeper, et al. v. Shipt, 331 Cal. Rptr. 3d 450 (Cal. 2025)

In Leeper, the Court of Appeal for the Second District reached a similar conclusion. The plaintiff, a former Shipt worker, alleged that Shipt misclassified her and others as independent contractors in violation of state wage & hour laws. The trial court denied the defendant’s motion to compel arbitration ruling that, because the plaintiff sought only non-individual civil penalties, there were no individual claims to arbitrate. On appeal, the Court of Appeal reversed. It reasoned that every PAGA action inherently includes an individual claim, alongside the representative claim. The Court of Appeal opined that the statutory language of the PAGA states that a PAGA action is one brought both on behalf of the plaintiff (the individual claim) and on behalf of others (the representative claim). On request for review, the California Supreme Court agreed to review the Court of Appeal’s order and to address the following questions: (i) Does every PAGA necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims; and (ii) can a plaintiff choose to bring only a non-individual PAGA action?

If the California Supreme Court sides with the plaintiffs on these issues and allows plaintiffs to maintain “headless” or representative-only PAGA claims, it will allow plaintiffs with arbitration agreements to bypass arbitration and to avoid the risk that they might not succeed on their individual PAGA claims. If plaintiffs can avoid arbitration altogether, such a ruling surely would bolster PAGA’s popularity as an arbitration work-around. Either way, given the technical requirements of California wage & hour law, coupled with the potentially crushing statutory penalties available to successful plaintiffs, employers should anticipate continued growth of PAGA lawsuits in 2026.

January 23, 2026January 23, 2026 by Class Action Defense

The Class Action Weekly Wire – Episode 132: Key Developments In Wage & Hour Class And Collective / PAGA Representative Actions

Duane Morris Takeaway: The Class Action Weekly Wire is back on the air in 2026 and our first episode features Duane Morris partners Jerry Maatman and Jennifer Riley with their discussion of the key trends and developments analyzed in the new editions of the Wage & Hour Class And Collective Action Review – 2026 and the Private Attorneys General Act Review – 2026. Our virtual desk references are fully searchable and accessible from any device.

Episode Transcript

Jerry Maatman: Thank you, loyal blog listeners and readers, for our first podcast of 2026. I’m Jerry Maatman, a partner at Duane Morris, and joining me today on the Class Action Weekly Wire podcast series is my colleague and partner, Jennifer. Thanks so much for being here, Jen.

Jennifer Riley: Great to be here, Jerry. Thanks for having me, and Happy New Year to you and to all of our listeners.

Jerry: Thanks so much. Our topic on today’s podcast are two desk references for employers that we put together, one on wage and hour issues, and the other on the California PAGA statute. It’s apropos that we talk about those mini-books, because after the publication of the Duane Morris Class Action Review on Tuesday, January 6, within a period of 10 days the Review and its analysis of wage and hour issues was cited in pleadings filed with the U.S. Supreme Court, so we’re very honored with the notion that the High Court received our analysis within less than 10 days after publication of the Duane Morris Class Action Review.

So, we wanted to talk, Jen, about some of the areas covered by the wage and hour and PAGA books, because I think these are our hottest mini-books and bestsellers.

Jennifer: That’s exactly right, I agree. These reports really capture how active and fast-moving these spaces continue to be. Starting with wage and hour, once again, in 2025, as we’ve seen for several years now, we saw litigation alleging violations of the Fair Labor Standards Act and related state wage and hour laws remain hot. That area remained an intense area of focus for the plaintiffs’ bar. In fact, plaintiffs filed more wage and hour class and collective actions in 2025 than any other type of complex litigation. That continues to give this area in particular outsized importance for employers.

Jerry: One of the core issues that we track is the ability of plaintiffs’ lawyers to certify their cases. In the class action space, obviously, certification is the holy grail. Cases rise and fall on it, and those certification rates are highest in several areas, including wage and hour. But at the same time, what we’re seeing is there are a myriad of standards now that have replaced the original standard articulated by a court called Lusardi in 1987 in the District Court of New Jersey. What’s going on, and what did 2025 represent in this space, Jen?

Jennifer: So, great question. So, there is a first stage and a second stage to these cases, traditionally, as you know. In the first stage, to conditionally certify a collective action per the Lusardi standard you mentioned, Jerry, plaintiffs need to make what the courts call this modest factual showing that they’re similarly situated to the members of their proposed collective action. That’s a fairly low threshold, and plaintiffs usually rely on declarations, from themselves, or maybe from a few other employees as well, sometimes some time in payroll records, and that’s pretty much it to meet that standard. If they succeed, courts typically allow, then, the plaintiffs to send notice of the action to these potential collective action members, who then have the opportunity to opt in and join the case.

So that’s the first stage. And then in the second stage, after opt-ins join the case, and after some discovery, courts conduct a much more searching analysis of whether the plaintiffs and the opt-ins are actually similarly situated. Courts then, and only then usually, dig into things like job duties, nature of the claims, the proof, and whether the case realistically can be managed through trial on a representative basis. That usually happens when the employer moves to decertify, although sometimes the plaintiffs seek a final certification order.

So that two-step approach, until recently, was almost universally applied. And frankly, it’s still the dominant approach in most federal courts today. But that uniformity is really starting to fracture.

Jerry: It really is. It all started in 2021 with the Fifth Circuit and its decision in Swales v. KLM Transport Services, where the two-step process was abandoned entirely and collapsed into one hearing and one motion. And then two years later, in 2023, the Sixth Circuit opined and waded in to this area in a case called Clark v. A&L Home Care, which also collapsed the two-step process into one step, but with a different procedural and evidentiary standard. And then if things weren’t complicated enough, the Seventh Circuit weighed in on August 5, 2025, in a case called Richards v. Eli Lilly, to give district courts discretion to fashion a single up or down certification hearing on these areas.

Jennifer: Agreed. That Eli Lilly decision really laid out another new framework. To obtain notice under that standard, the plaintiffs need to make that threshold showing that there’s a material factual dispute as to whether the proposed collective action members are similarly situated. The defendants, though, are then expressly allowed to submit rebuttal evidence, and courts need to weigh that evidence before deciding the issue, in terms of whether to send notice. The Seventh Circuit also recognized that there’s some flexibility there. If the key evidence, for instance, is in the hands of employees who haven’t yet received notice, the court can authorize notice while deferring that final similarity determination. And some courts may allow limited expedited discovery to resolve the similarly situated questions before the court makes a determination.

Jerry: Well, the bottom line is, today we now have four different approaches, which is a head-scratcher, given that this is a piece of New Deal legislation enacted in 1938. And now it’s 2026, and parties are still arguing over how a court should approach a certification issue and a wage and hour collective action. And this is why I think that we were so honored to be cited in Supreme Court briefs that were submitted last week in Washington, in yet another case, this one from the Fifth Circuit, called Cracker Barrel, where, the losing party is, again, getting before the Supreme Court and saying, ‘you need to provide some direction here, because having four different standards makes no sense.’ What we see from a practical standpoint is the same employer can be sued in different jurisdictions, and because of these different standards, there could be different outcomes based on the same facts. So, it’s something we’ll be watching closely in 2026 to see if there’s some uniformity or change in the direction of federal courts in dealing with these certification issues in the wage and hour space.

Jennifer: That’s good, absolutely. Let’s pivot now to our second publication, the Private Attorneys General Act Review – 2026. So, as a refresher, the California Private Attorneys General Act, or PAGA, allows employees to step into the shoes of the labor commissioner and seek civil penalties for labor code violations. So, for more than a decade, PAGA claims have been among the most frequently filed in California. Plaintiffs historically have favored PAGA over class actions for several reasons, including because of the relaxed requirements, to maintain that case on a representative basis. For instance, in PAGA, there’s no requirement to go through a class certification process. According to data from the California Department of Industrial Relations, the number of PAGA notices filed with the state LWDA reached an all-time high in 2025, continuing that trend that’s really been building for decades.

Jerry: Well, I know, Jen, you have a nationwide defense practice in class actions, but as a member of the California Bar and resident in both our Los Angeles and San Francisco offices, you spend a considerable amount of time defending employers in the state of California. Seemed to me there was a kind of an earthquake out there with a major decision in 2025 in the Lyft case. Why, in your opinion, was that case so significant to employers, sued under the PAGA statute in California?

Jennifer: Great question, Jerry. So that case you’re referring to is Turrieta v. Lyft. In that case, the California Supreme Court held that plaintiffs in separate PAGA actions cannot intervene in, object to, or seek to vacate a settlement reached in another PAGA case. The California Supreme Court there emphasized that the state is the real party in interest, that PAGA only requires notice and oversight by the LWDA and the trial court. The California Supreme Court noted that permitting intervention would result in a PAGA claim involving multiple sets of lawyers all purporting to advocate for the same client and fighting over who could control the litigation and the settlement process, and who could recover the attorneys’ fees. So, not only does PAGA not itself address such complexities, but such a messy situation would thwart the pursuit of PAGA claims contrary to the state’s purpose.

Jerry: My sense is the factual backdrop here is very important insofar as multiple Lyft drivers filed overlapping PAGA actions. One plaintiff had settled for $15 million – one of the more substantial pocket settlements of the year – and the other plaintiffs tried to derail that settlement. And I think sometimes, conceptually, it’s good to analyze decisions as door openers or door closers, and certainly the California Supreme Court, closed the door and shut down those efforts to intervene. Which is somewhat contrary to the general notion out there that the California Supreme Court always rules in favor of workers and against employers.

Jennifer: Exactly, I agree. That ruling gives employers much more certainty. It means they can resolve one PAGA case without fear that other plaintiffs will come in, disrupt the settlement – provided, of course, that the court approves it. Taken together, I think these developments show just how dynamic wage and hour and PAGA litigation continues to be.

Jerry: Well, that underscores the rationale for our creation and publication of these two books on wage and hour and PAGA developments to help employers understanding this patchwork quilt of laws and standards, where things stand, where they’re headed, and how to navigate these risks. So, we encourage our readers to take a look at those 2026 editions of the wage and hour and PAGA handbooks. The price is right: they’re for free. And you can download them, and they’re searchable – you could even look at them on your phone.

Well, thanks for joining me today, Jen, and thank you to all our listeners, and we’re glad you tuned in for this, first of the year installment of the Class Action Weekly Wire.

Jennifer: Thanks, Jerry, and thank you, listeners. It was a pleasure to be here today.

January 20, 2026January 20, 2026 by Class Action Defense

Presenting The 2026 Releases Of The Wage & Hour Class Action Collective Action Review and The Private Attorneys General Act Review!

By Gerald L. Maatman, Jr., Jennifer A. Riley, Gregory Tsonis, Daniel Spencer, and Eden Anderson

Duane Morris Takeaways: Duane Morris is proud to announce the publication of two Reviews, the Wage & Hour Class And Collective Action Review – 2026, and the Private Attorneys General Act Review – 2026. We hope these publications will demystify some of the complexities of Wage & Hour and PAGA litigation and keep corporate counsel updated on the ever-evolving nuances of these issues. We hope these books – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with Wage & Hour and PAGA litigation.

Once again in 2025, as has been the case for several years, litigation against employers alleging violations of the Fair Labor Standards Act (FLSA) and/or related state law wage & hour laws continued to be an area of intense focus for plaintiffs’ attorneys. The plaintiffs’ bar in 2025 filed more wage & hour class and collective actions against companies than any other type of complex litigation, resulting in outsized importance for this area of substantive law. Similarly, claims filed under the California Private Attorneys General Act (PAGA), continue to be one of the most popular types of complex litigation filed in California. PAGA representative lawsuits allow plaintiffs to bring claims on behalf of their co-workers with no class certification requirements and minimal barriers to legal standing. By all accounts, 2025 was a very active year on the PAGA litigation front.

Click here to bookmark or download a copy of the Wage & Hour Class And Collective Action Review – 2026 e-book.

Click here to bookmark or download a copy of the Private Attorneys General Act Review – 2026 e-book.

Stay tuned for more Wage & Hour and PAGA class action analysis coming soon on our podcast, the Class Action Weekly Wire.

January 15, 2026January 15, 2026 by Class Action Defense

Register Now For An Exclusive Event & Webinar: Don’t Forget To Register For The Duane Morris Class Action Review – 2026 Book Launch Event!

Duane Morris Takeaway: The Duane Morris Class Action Review, our 22nd annual study of the class action space, is the biggest and most comprehensive edition yet, at over 750 pages. The 2026 Review has more analysis than ever before, with discussion of over 1,761 class certification rulings from federal and state courts examining all categories of class action litigation.

We will host an in-depth discussion of the key trends analyzed over the past 12 months at the Duane Morris Class Action Review – 2026 Book Launch Event on Thursday, February 5, 2026, from 3:30 p.m. to 6:00 p.m. at the Northwestern University School of Law. Register here to reserve your in-person or virtual seat and join us for a 60-minute live panel with DMCAR editors Jerry Maatman and Jennifer Riley and guest speaker Hon. Wayne R. Andersen (Ret.). CLE, SHRM, and HRCI credit will be available.